A summary of the problem

Standard and enhanced checks issued by the DBS reveal old, minor and irrelevant criminal records. The current system of disclosure was ruled unlawful by the High Court in 2016. The DBS filtering rules are blunt and disproportionate. People are losing out on jobs and roles they’re qualified for. As things stand, a criminal record dogs people for decades, and often for life, no matter how old or minor. This is despite knowing that, in particular, people make mistakes when they’re young. Young people should be allowed to fail. The current system is unnecessary and damaging. A fairer, more proportionate and flexible system should be developed that protects the public without unduly harming people’s opportunity to get on in life. This would be one with expanded automatic filtering rules and a discretionary filtering process with a review mechanism.

Why it matters

A criminal record can be crippling for employment – Employers are risk-averse, and often assume that if something is flagged on a disclosure, they cannot hire the applicant. Yet it’s a sad irony that a criminal record only becomes a problem when someone decides to get on in life; a criminal record check is not required to sell drugs or join a gang, but it is to get a job or go to university.

It dogs people for decades – The current system affects people with a criminal record for longer and more profoundly than elsewhere in Europe. The current criminal record disclosure system acts as a significant barrier to them doing so and can have profound effects well into adulthood, and often indefinitely.

Large numbers of people are affected – In 2015/16, there were 358,810 standard or enhanced checks which had a match with police record. 67% of those matches resulted in a caution or conviction being disclosed. The DBS filtering rules only removed information from 33%. Some 241,203 checks revealed convictions or cautions.

What the problem is

The intention of the DBS filtering system was to prevent the disclosure of old and minor offences on standard and enhanced criminal record checks. However, in practice the system is ineffective because it is limited by inflexible rules and only came about due to legal challenges. Since the filtering scheme was introduced in 2013, it’s helped many people with old and minor criminal records to be free of the stigma and discrimination that so many face when they have something on their criminal record. However, the current system doesn’t go far enough: it is blunt, restrictive and disproportionate.

The cases brought before the Court of Appeal in February 2017 illustrate the problem:

One case (A) involved a 51-yr old, who when he was 17 was convicted of theft of a coat from a market stall. He was fined £30. Ten months later, 23 days after turning 18, he was convicted of stealing a motor cycle and of driving without insurance. He was fined £50 and to 24 hours attendance at an attendance centre. As he has three offences on record, none of them are filtered by the DBS. He’s concerned that his family might learn of the convictions and that his work as a finance director and project manager might require due diligence checks or might engage the Financial Services Authority aspects of the scheme for disclosure of convictions on a standard DBS check.

Another case (P) involved a 47-yr old woman who, 17 years ago (when suffering from schizophrenia) committed two offences of shoplifting. The first offence involved stealing a sandwich; she was cautioned. The second offence involved stealing a book (priced 99p); she was prosecuted and bailed to appear before a Magistrates court. She was homeless at the time and due to her health, failed to appear at court, so received two convictions – the second theft offence and an offence under the Bail Act 1976. Mrs P has sought voluntary positions in schools and would like to work as a teaching assistant. Although she’s had some success in obtaining voluntary roles, she’s so far failed to secure paid employment. As she has two convictions on record, neither is filtered by the DBS. She believes that having to disclosure her convictions goes against her in getting employment, and carry with them a requirement to explain her past mental health history, to which she attributes her offending behaviour, to her significant embarrassment.

Many people have more than one offence on record. For example, someone stealing a car will have committed at least two offences; theft and driving without insurance. The ‘single conviction’ rule has no rational relationship to the purposes of rehabilitation.

Minor offences are being routinely disclosed. An FOI response revealed that relatively minor under-18 convictions are routinely and widely disclosed. Between 2013 and 2015 under-18 shoplifting was disclosed 34,000 times and there were over 2,795 disclosures of under-18 convictions for theft of a cycle. Such disclosure of minor offences (that do not appear on the list of exempt offences) was relatively common; shoplifting, common assault and possession of various forms of cannabis were some of the most commonly disclosed under-18 convictions. This suggests that the “two offences” rule is having a significant impact on children.

The list of offences is an inappropriate barometer for relevance. Offences themselves are not a good indicator of the seriousness of nature of a person’s offending behaviour. One of the court cases involved a 13-year-old who was given two reprimands for sexual offences against a male under 13. The facts were that the incident involved mutual masturbation graduating to ‘bum sex’. Robbery (an offence than cannot be filtered) could be used as the offence where a 12-year-old pushes over a classmate and takes their mobile phone. Offence categories fail to take into account specific circumstances. For example, the production and distribution of sexual images of a child could relate to a 16-year-old sending a classmate a naked picture of themselves. When it comes to cautions, people may accept a caution for a relatively serious offence when, if they were charged, that offence would likely be downgraded or they might be acquitted. Offences of ABH and prostitution should not be on the list.

The Law Commission’s review of the filtering system was very narrow and did not extend to reviewing the list of offences to make sure it’s the right list.

On page 4 of the final report by the Law Commission, it states: “The project is a very narrow one with a short time frame. Our terms of reference expressly limit our review to changes that can be achieved using only secondary legislation.”

As the report states on page 13: “We do not make recommendations about whether any particular offences should be added or removed from the list of non-filterable offences. Specifically, we have not produced a draft statutory instrument containing a revised list of non-filterable offences for implementation. We have concerns that merely introducing new statutory instruments to give effect to either the itemised list that we have produced, or a revised list compiled within the narrow confines of the present project, would be unlikely to produce the best solution to wider problems with the disclosure regime as a whole.”

There is no discretion – The filtering system is made up of ‘bright-line’ rules:

Age, seriousness and relevance are not considered where someone has more than one conviction.

Disclosure is automatic – there is no provision to make prior representations if something does not fit within the automatic rules.

There is no assessment at any stage as to the relevance of the conviction/caution to the employment sought, or to the extent the individual may be perceived as continuing to pose a risk.

There is no opportunity for review – The Independent Monitor is available to review the decision by a Chief Policy Officer to disclose “relevant information” such as arrests and allegations. This function does not currently extend to reviewing the automatic disclosure of old/minor convictions and cautions.

What we can do about it

We urge the government to take immediate steps to reform the system and make sure that old, minor or irrelevant convictions and cautions are not disclosed on criminal record checks. This would include extending the automatic filtering rules so that they cover multiple offences/convictions and that more offence categories could be filtered. A discretionary filtering process with a review mechanism could apply to convictions and cautions not eligible for automatic filtering because of the nature of the offence or the sentence received.

The government has an opportunity to undertake proactive work to establish a much more proportionate framework. An appropriate statutory framework in our view would be one that is:

Transparent and fair: Clear to all parties, including individuals and employers. Individuals are able to understand what may be disclosed on a certificate

Proportionate: Old, minor or irrelevant information is removed from the disclosure where it does not relate to the purpose of the check being undertaken

Flexible: For enhanced checks, the police can disclose relevant information if necessary (even if filtered). Wide range of factors that need to be considered when assessing proportionately. Any automated process of filtering is subject to an individual consideration. Does not require a decision about every disclosure or each time a fresh disclosure is sought.

In relation to the current filtering system, the government should:

Remove the ‘one offence/conviction’ rule

Reduce the list of offences not eligible for filtering

Remove the restriction on prison sentences so they are eligible for filtering

Introduce a discretionary filtering system with a review mechanism for offences not eligible for automatic filtering

Establish a more nuanced system for the disclosure of cautions

Create a distinct system for the disclosure of criminal records acquired in childhood

This was recommended by Charlie Taylor in his review of youth justice in 2016.

We believe there is a need for a distinct system of disclosure for records acquired in childhood. We are not aware of any evidence to support the current system. In fact, there is significant evidence to suggest that the current disclosure framework for childhood convictions works against Whilst it is important to ensure that employers and the public are protected, the current system allows for disclosure of significantly more information than would be required to achieve this. International comparisons indicate that far less punitive systems are possible, with no compromises on public or employer protection. The current system involves disproportionate, lengthy and wide disclosure which is unnecessary and actively unhelpful to children in building positive lives in adulthood.

We support the ‘Growing up, moving on’ campaign led by the Standing Committee for Youth Justice, of which we are a member. This includes the provision for childhood records to be physically deleted after a period of non-offending. In the immediate term, an expanded filtering system and discretion introduced to the under-18 criminal records system, specifically:

All under-18 cautions should be filtered automatically after two years, at most (meaning they do not appear on Standard or Enhanced criminal records checks);

Convictions that did not result in a prison sentence should be filtered automatically, at the most, four years after the person’s last conviction. Any number of convictions that did not result in a custodial sentence should be filterable.

Where filtering is not automatic, a review mechanism should be introduced to consider offences for filtering. The police could perform the review function, with people having the possibility of appeal;

Enable a way for applicants to apply for their own DBS before applying for positions

The way forward – Discretionary filtering

Why?

Any system that is wholly dependent on automatic rules, without discretion or review, is going to be inflexible and disproportionate, with people on the margins unfairly affected.

In September 2015, the Scottish Government introduced a filtering system for old/minor convictions. Although this system is not ideal, critically they have introduced a ‘review process’ by way of an ‘application to a sheriff’ that allows those with a spent conviction for an offence on the “rules list” to apply to a sheriff to have this information removed from their disclosure certificate if they think it is not relevant to the role for which they have asked for the disclosure.

In March 2016, the Department for Justice in Northern Ireland introduced a criminal records filtering review scheme which includes an opportunity for independent review. Despite this system having its limitations, it nevertheless provides a strong basis for how a similar review process could to be introduced in England & Wales. The Independent Reviewer is also the Independent Monitor in England and Wales.

The examples of Scotland and Northern Ireland are not referenced here to suggest they should be replicated in England and Wales. However, they do demonstrate the ability to establish a system that is partly based on automatic rules and partly based on a discretionary process.

The filtering system should, principally, be an automatic process that gives clarity and certainly. We have made recommendations in our written evidence as to how the automatic filtering rules should be amended (including removing the ‘one conviction only’ rule and creating a distinct set of rules for offences under 18). However, any automatic rules, without review, are going to be rigid with people on the margins unfairly affected, which is why a discretionary process to establish a more nuanced approach needs to be built into the system.

The National Police Chiefs Council (NPCC) support the idea of chief officers being given responsibility to apply similar tests of relevance and proportionality as they currently do with non-conviction information. Building on the existing quality assurance framework for enhanced checks, the police could assess individual DBS applications and apply a discretionary filtering process, determining whether unfiltered convictions/cautions are relevant to the role (and so disclosed) or not relevant (and so not disclosed)

The discretionary filtering process would need to be subject to independent review. This could be carried out by the Independent Monitor, receiving appeals from applicants that believe information is no longer relevant and so shouldn’t be disclosed – decisions could be made to apply to allow future disclosures, or just the current disclosure.

The Home Office would need to undertake an assessment of the costs of introducing a discretionary filtering process, which it has yet to do. The current DBS system is self-financing by employers. In addition to the fixed fee charged by the DBS (£26 for standard, £44 for enhanced), employers pay an additional cost if they use the services of an umbrella body. Umbrella body’s charge varying prices, often between £10 and £25. For example, Personnel Checks charge £68.49 for enhanced checks, which is £24.49 more than the flat DBS cost. A small rise in the fixed cost of DBS checks (e.g. 50p per check) could cover the additional resources of an expanded role for the Independent Monitor.

How?

The filtering system should, principally, be an automatic process that gives clarity and certainly. We have made recommendations in our written evidence as to how the automatic filtering rules should be amended (including removing the ‘one conviction only’ rule and creating a distinct set of rules for offences committed by those under 18). However, any automatic rules, without review, are going to be rigid with people on the margins unfairly affected, which is why a discretionary process to establish a more nuanced approach needs to be built into the system.

The National Police Chiefs Council (NPCC) support the idea of chief officers being given responsibility to apply similar tests of relevance and proportionality as they currently do with non-conviction information. Building on the existing quality assurance framework for enhanced checks, the police could assess individual DBS applications and apply a discretionary filtering process, determining whether unfiltered convictions/cautions are relevant to the role (and so disclosed) or not relevant (and so not disclosed).

The discretionary filtering process would need to be subject to independent review. This could be carried out by the Independent Monitor, receiving appeals from applicants that believe information is no longer relevant and so shouldn’t be disclosed – decisions could be made to apply to allow future disclosures, or just the current disclosure.

The Home Office would need to undertake an assessment of the costs of introducing a discretionary filtering process, which it has yet to do. The current DBS system is self-financing by employers. In addition to the fixed fee charged by the DBS (£26 for standard, £44 for enhanced), employers pay an additional cost if they use the services of an umbrella body. Umbrella bodies charge varying prices, often between £10 and £25. For example, Personnel Checks charge £68.49 for enhanced checks, which is £24.49 more than the flat DBS cost. A small rise in the fixed cost of DBS checks (e.g. 50p per check) could cover the additional resources of an expanded role for the Independent Monitor. As of the end of the financial year 2017, the DBS was sitting on approximately £70m cash balance.

The broader criminal records regime and the sealing of records

This page is focused on the DBS filtering regime. It’s important to recognise how that regime is just one element of the broader criminal records regime which, in our view, needs fundamental reform. That would include an overhaul of the Rehabilitation of Offenders Act 1974, including changes to the length of time after which convictions can become spent (for example, enabling sentences of over 4 years in prison to become spent).

It is also important to recognise the importance of more fundamental ‘sealing’ processes. Quasi-judicial processes – like in France – give individuals the right to “judicial rehabilitation”. Sealing processes of this type have recently been advocated for by David Lammy MP in his 2017 review of disproportionately in the criminal justice system, and processes like this could interact with amendments to the filtering regime, especially if there were to be a discretionary review mechanism as to necessity for continued disclosure on criminal record checks.

Latest news on filtering

The current criminal record disclosure rules are unnecessarily harsh and disproportionate – they mean that standard and enhanced DBS checks continue to disclose old, minor and irrelevant offences that often happened decades ago. This means people can feel like they are effectively serving a life sentence for minor offences that they committed...

The latest blog by Christopher Stacey reflects on last month’s landmark criminal record disclosure hearing. For people with criminal records, last month was pretty significant. The Supreme Court heard the appeal of the Government, which is arguing that their current approach to disclosing old and minor cautions and convictions on standard and enh...

The Supreme Court will tomorrow hear the Government’s appeal in a long running case about the disclosure of criminal records. The Government is arguing that their current approach to disclosing old and minor cautions and convictions on standard and enhanced criminal record checks, often decades later, is fair. We disagree. And so did the High...